Face-Off : ‘Mighty Ducks’ Writer Sues Disney Over Merchandise Take

“They named a pro team after us,” says one character in “D3: The Mighty Ducks,” Walt Disney Co.’s most recent installment in the series of films about a ragtag hockey team.

And that’s exactly Steven Brill’s point.

The hockey team with the funny name that Brill dreamed up as a screenwriter for the hit 1992 movie spawned a bonanza for Disney no one could have predicted.

To date, there have been three “Mighty Ducks” movies, a Saturday morning cartoon show, a playoff-bound National Hockey League franchise and enough jerseys, caps, pucks, shirts, duck calls and other goods sold to make Disney and its team the single largest player in the $1-billion-a-year market for licensed NHL merchandise.

One other thing it generated: a legal dispute over money.

In a little-noticed claim, but one with millions of dollars at stake, Brill wants 5% of Disney’s take from Mighty Ducks merchandise, citing language in the basic Writers Guild of America agreement that Disney and the other studios abide by.

In his case, Brill cites language in the agreement that says a writer is entitled to 5% of the absolute gross--defined as money remitted by manufacturers of the merchandise--when a studio exploits an object or thing “first described in literary material written by the writer.” The agreement also says that the object or thing must be fully described in the material, and also be unique and original.

Brill lawyer Richard C. Leonard argues that his client’s claim clearly meets the threshold set in the Writers Guild agreement because there was no such thing as a Mighty Ducks hockey team until Brill thought it up. Through Leonard, Brill declined to comment.

Disney and its chief lawyer on the case, William L. Cole, wouldn’t comment either, although one source close to the studio said that it believes that Brill’s claim is unfounded because what he described in his screenplays wasn’t Disney’s Mighty Ducks of Anaheim pro hockey team.

So far, Brill’s case has escaped notice by most of Hollywood, partly because it’s caromed around various legal jurisdictions like a hockey puck, thanks in part to adept legal goal-tending by Disney lawyers.

Brill, who also served as a co-producer or executive producer on the “Mighty Ducks” sequels--and who is not the Steven Brill of American Lawyer magazine and Court TV fame--first filed suit in Los Angeles Superior Court in late 1995. Disney successfully argued that the suit should be over in the federal courthouse because it was essentially a labor dispute.

The federal case was then put on ice by a judge as a procedural move while Brill’s claim was shipped off to the Writers Guild to determine if it is something that should be arbitrated outside of the courthouse, which is where it stands now. If a decision is made that it shouldn’t be arbitrated, Brill’s lawyers say they will file it again as a federal lawsuit.

More often than not, writers don’t share in the merchandise money because studios can argue that what they described is generic. A writer describing a ray gun, for example, in a science-fiction script wouldn’t have a merchandise claim unless it was described in highly specific detail.

Needless to say, writers are paying much closer attention to their rights to merchandise sales because the sale of film-related goods has become such an important part of the business for studios, especially at a place like Disney, which operates its own lucrative chain of stores.

Some writers have successfully pressed their case for merchandise money, notably “E.T. the Extra-Terrestrial” screenwriter Melissa Mathison.

Mathison in 1989 won a Writers Guild arbitration proceeding involving the merchandise rights for the Steven Spielberg film, arguing that she provided extensive detail on how the cuddly alien looked in her script drafts, descriptions eventually used to create E.T.’s look. Universal Pictures, which released the film, unsuccessfully claimed that substantial parts of the character were generic.

Disney bought the “Mighty Ducks” script from Brill in 1990. A graduate of Boston University’s film school, Brill had been an episodic television writer. He’s also an occasional actor, appearing in such films as “Batman Returns” and “sex, lies and videotape.” Disney in 1995 released Brill’s directing debut, “Heavyweights.”

Exactly how much Ducks-related merchandise Disney sells is a closely guarded secret, but it clearly is a hefty amount. Team Licensing Report, a sports business newsletter, reports that the Mighty Ducks, for the 1994 and 1995 seasons, ranked first among NHL franchises in merchandise sales, which it estimates at $1 billion annually for the league.

Although there was public sentiment at the time against naming the franchise after the film, Disney Chairman Michael Eisner recognized the opportunity to exploit the name and made it clear it was the one he wanted.

“Ducks are what we are going to call it unless I hear otherwise,” Eisner said when Disney first announced it was going into hockey. The movie, he added “was our market research.”

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A Power Play

Walt Disney Co.’s three “Mighty Ducks” movies grossed more than $119 million in domestic box-office sales and the movies’ namesake, the Mighty Ducks of Anaheim, are the largest player in the $1 billion-a-year market for licensed National Hockey League merchandise:

Ranked by Sales for 1995*

1. Mighty Ducks

2. Chicago Blackhawks

3. Toronto Maple Leafs

4. New York Rangers

5. Detroit Red Wings

6. Boston Bruins

7. Pittsburgh Penguins

8. San Jose Sharks

9. Montreal Canadiens

10. New Jersey Devils

* Fiscal year ending March 31, 1996

Sources: Entertainment Data; Team Licensing Business